KARON MacLEAN 11/17/2015
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SONY COMPUTER )
`ENTERTAINMENT AMERICA )
`LLC, )
` Petitioner, )
` v. ) CASE NO.:IPR2015-0229
`APLIX IP HOLDINGS ) IPR2015-00230
`CORPORATION, )
` Patent Owner. )
`_______________________ )
`
`
` DEPOSITION OF KARON MACLEAN
` NOVEMBER 17, 2015
`
` The discovery deposition of KARON MACLEAN, taken in
`the above-entitled cause, before Spencer J. Charest, BCSRA
`No. 429, Official reporter, on the 17th of November, 2015,
`at 1253 Johnston Street, Vancouver, B.C.
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`MIDWEST LITIGATION SERVICES
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`Fax: 314.644.1334
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`SCEA Ex. 1040 Page 1
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SONY COMPUTER )
`ENTERTAINMENT AMERICA )
`LLC, )
` Petitioner, )
` v. ) CASE NO.:IPR2015-0229
`APLIX IP HOLDINGS ) IPR2015-00230
`CORPORATION, )
` Patent Owner. )
`_______________________ )
`
`
` DEPOSITION OF KARON MACLEAN
` NOVEMBER 17, 2015
`
` The discovery deposition of KARON MACLEAN, taken in
`the above-entitled cause, before Spencer J. Charest, BCSRA
`No. 429, Official reporter, on the 17th of November, 2015,
`at 1253 Johnston Street, Vancouver, B.C.
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`Fax: 314.644.1334
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`SCEA Ex. 1040 Page 1
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`KARON MacLEAN 11/17/2015
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`Page 2
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`APPEARANCES:
` ERISE IP
` 5600 Greenwood Plaza Blvd.
` Suite 200
` Greenwood Village, CO 80111
` (720) 689-5440
` BY: MR. ABRAN KEAN.
` On behalf of the Petitioner;
` GREEN ESPEL PLLP
` 222 SOUTH NINTH STREET
` SUITE 2200
` MINNEAPOLIS, MINNESOTA 55402
` BY: ROBERT J. GILBERTSON,
` On behalf of the Patent Owner.
`
` ALSO PRESENT: CALLIE PENDERGRASS,
` SENIOR TECHNICAL ADVISOR
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`Fax: 314.644.1334
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`SCEA Ex. 1040 Page 2
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`KARON MacLEAN 11/17/2015
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` I N D E X
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`Page 3
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` INDEX OF EXAMINATIONS
` EXAMINATION PAGE
` Examination of Karon Maclean by Mr. Kean 4
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` E X H I B I T S
`
` NUMBER DESCRIPTION PAGE
` Exhibit
` 1037 Users guide for the Treo 270 22
` Exhibit Hand-drawn illustration of Liebenow
` 1038 figure 7 and also Griffin figure 2 169
` Exhibit
` 1039 User manual for Flight Simulator 204
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`SCEA Ex. 1040 Page 3
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`KARON MacLEAN 11/17/2015
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`Page 4
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` EXAMINATION
`BY MR. KEAN:
` Q. Good morning. Will you state your name for the
`record, please.
` A. Karon MacLean.
` Q. And, Dr. MacLean, have you been deposed before?
` A. No, I have not.
` Q. I'm going to give you just a few ground rules for
`a deposition. I'll ask questions. Please provide verbal
`answers. Obviously nodding is hard to get on the record,
`so please provide verbal answers to help the court
`reporter. Also I'll try not to talk over you, and if you
`would extend the same courtesy to me that would make the
`court reporter's job much easier.
` We can take a break whenever you like so if you
`want to take a break just let me know. We can do that any
`time. It's not a marathon today.
` If my question is unclear please ask for a
`clarification. If you answer my question I will assume
`that you understood it; is that fair?
` A. Yes.
` Q. Is there any reason why you'd be unable to
`testify accurately and truthfully today?
` A. Not that I can think of.
` Q. Today's deposition is going to cover declarations
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`SCEA Ex. 1040 Page 4
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`KARON MacLEAN 11/17/2015
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`Page 5
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`you prepared and signed in two inter partes review
`proceedings. One is IPR2015-00229, and that involves US
`patent number 7667692. And the second proceeding will be
`discussing today is IPR2015-00230, and that concerns US
`patent number 7463245.
` If I refer to those two proceedings today as the
`692 and the 245 proceeding will you understand what I'm
`referring to?
` A. Yes.
` Q. And I'm going to hand you the declarations that
`you've provided in these two proceedings.
` First I'm going to hand you what has previously
`been marked as Exhibit 2003, and this is the declaration
`you provided in the 245 proceeding. And next I'm going to
`hand you what has also been marked Exhibit 2003, but this
`one is in the 692 proceeding. And this is the declaration
`you provided in that proceeding.
` Dr. MacLean, I believe you said you've not been
`deposed before; is that right?
` A. Correct.
` Q. Have you been involved in any capacity in any
`previous litigation?
` A. No, I have not.
` Q. Have you been involved in any capacity in any
`previous patent office proceedings?
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`SCEA Ex. 1040 Page 5
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`KARON MacLEAN 11/17/2015
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`Page 6
` A. I have been inventors on other patents, but I did
`not participate directly in their litigation.
` Q. How are you being compensated by the patent owner
`in this case?
` A. For an hourly rate.
` Q. What is your hourly rate?
` A. $350 an hour.
` Q. Why did you decide to provide a declaration in
`this case?
` A. I found the topic interesting, and it was
`something I wanted to try doing while I was on sabbatical
`and had a little bit of spare time.
` Q. And by "something" do you mean acting in an
`expert witness capacity?
` A. Acting in an expert witness capacity was
`something I was interested to try doing.
` Q. One of the named inventors on the two patents
`we're discussing today is Dr. Beth Marcus. Do you know
`Dr. Marcus?
` A. I have never met her personally but I have
`briefly interacted with her. We work in the same area.
` Q. Could you describe those interactions for me,
`please.
` A. I have -- well, first of all, she is -- she has
`employed -- she has been part of several small
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`SCEA Ex. 1040 Page 6
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`KARON MacLEAN 11/17/2015
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`Page 7
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`businesses -- she has been the proprietary of several
`small companies over the years and she's employed people
`that I knew in that capacity so her name has come up. And
`most recently when I was looking for an introduction to
`someone I -- was suggested that she might be able to
`provide an introduction to someone, and so I contacted her
`by email for that, and she did that and it was a brief
`email exchange. We don't have a close relationship.
` Q. Did you know Dr. Marcus when you were at MIT?
` A. No, I did not know her at that time.
` Q. Have you discussed your involvement in these
`proceedings with Dr. Marcus?
` A. No, I have not.
` Q. Are you aware of whether or not Dr. Marcus has an
`ownership stake in Aplix?
` A. I do not know.
` Q. Are you aware of whether or not Dr. Marcus has an
`ownership interest in the outcome of this litigation?
` A. I do not know.
` Q. Dr. MacLean, I have handed you what has been
`marked Exhibit 2003 in the 692 proceeding and also 2003 in
`the 245 proceeding.
` If you turn to the final page of the two
`documents that I have handed you, would you please confirm
`that that's your signature on the final page.
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`Fax: 314.644.1334
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`KARON MacLEAN 11/17/2015
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`Page 8
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` A. Yes, this is my signature.
` Q. Before we get started in earnest today on these
`two documents, is there anything that you would like to
`change in either declaration?
` A. There were two or three -- I think three small
`clarifications that it would probably be helpful to point
`out that I found. These were in the nature of typos that
`I discovered.
` Q. Okay.
` A. Should I point them out to you now?
` Q. Yes, please.
` A. And I'm looking on my computer because that's
`where I have noted them, if that's okay.
` Q. Just for clarification for the record, you're
`looking on your computer at versions of your
`declarations --
` A. Yes.
` Q. -- that have highlighted the typos you're going
`to identify?
` A. That's right. That's right. I have documents
`that we might discuss today in a folder on my computer and
`they are simply the ones that I have bookmarked and maybe
`underlined things on, and in this case marked these small
`clarifications.
` So on the 245 declaration on page 218 -- sorry,
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`SCEA Ex. 1040 Page 8
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`KARON MacLEAN 11/17/2015
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`Page 9
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`paragraph 218, it isn't quite that long, discovered a
`typo. It says in my -- are you there?
` Q. Yes, thank you.
` A. It says:
` In my opinion 245 claims 1, 12 and 16 are not
` rendered obviously by the combination of
` Liebenow in view of Andrews."
`That's what it says. It should say "combination of
`Griffin in view of Liebenow."
` Q. Okay. Thank you.
` A. I think it's quite obvious from the context that
`that was a typo. Okay.
` And then on the 692 declaration I was advised by
`Bob Gilbertson that in the 692 document the exhibit
`referencing is two numbers off. And I will let Bob
`explain that. Within the document it's internally
`correct. There's a list of exhibits and the references
`are correct there, but apparently that list of exhibits is
`off by two to a master list.
` Q. Okay.
` A. And there's another very small one at
`paragraph 89, if I can find that. I just noticed this
`last night. So there a heading before paragraph 89. It's
`actually two headings that got collapsed together so it
`could be slightly confusing when you're reading it.
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`KARON MacLEAN 11/17/2015
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`Page 10
` So "Not obvious how Hedberg's motion sensors could
`be used for the text and digit entry taught by Liebenow"
`is a higher heading, and then a subheading of that which
`should be introducing the next paragraph is "Liebenow
`teaches using keyed input," et cetera. So that is it.
` Q. Okay.
` MR. GILBERTSON: Could I note for the record the
`exhibit glitch?
` MR. KEAN: Please.
` MR. GILBERTSON: So in the 692 declaration there
`are references to 14 exhibits, Exhibits 2007 through 2020,
`and what we discovered is that that got carried over from
`the 245, and as actually filed, the 692 exhibits are two
`numbers lower in each instance. So it would be from 2005
`through 2018.
` So essentially if you're looking at an exhibit
`number between 2007 and 2020 in the 692 declaration, the
`actual filed exhibit is two numbers lower than that.
` MR. KEAN: Okay. Thank you.
` THE WITNESS: And there were occasional small
`typos that didn't seem worth bringing up, but these were
`the only ones I thought might cause some confusion.
` MR. KEAN:
` Q. Thank you.
` Dr. MacLean, in your 692 declaration please turn
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`Fax: 314.644.1334
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`SCEA Ex. 1040 Page 10
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`KARON MacLEAN 11/17/2015
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`Page 11
`your attention to the exhibit list, and that's on pages 8
`through 10 in your declaration.
` A. I am there.
` Q. Will you please confirm that these are documents
`that you reviewed and analyzed in preparing your opinion
`in this matter.
` A. Yes, I confirm that.
` Q. Did you analyze each of these documents that are
`listed?
` A. Yes, I have analyzed each of them.
` Q. Are there any other documents that you reviewed
`or analyzed in preparing your opinion that are not listed
`here?
` A. No.
` Q. Let's do the same set of questions for the 245
`declaration. Once again in that declaration the exhibit
`list appears on pages 8 through 10. And would you please
`confirm that, like in the 692 proceeding, for the 245
`proceeding and for this declaration that you reviewed and
`analyzed the documents listed here?
` A. Yes.
` Q. I'm sorry?
` A. Yes, I have.
` Q. Are there any other documents that you reviewed
`or analyzed in preparing your opinion for the 245
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`KARON MacLEAN 11/17/2015
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`Page 12
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`proceeding that are not listed here?
` A. No, there are not.
` Q. Dr. MacLean, in the 692 declaration if you turn
`with me briefly to paragraphs 32 through 46. And these
`paragraphs are providing a background of the technology;
`is that right?
` A. Correct.
` Q. Is your explanation of the background of the
`technology the same for the 692 and the 245 proceedings?
` A. Yes, it is.
` Q. I would like to start with the 692 declaration,
`so please let's refer to that one first. Will you please
`turn with me to paragraph 34 of your declaration.
` A. Yes.
` Q. Please take just a minute to review the
`statements in paragraph 34.
` A. Okay.
` Q. What is the factual basis for the statements in
`this paragraph?
` A. By that you mean where did I find this
`information or what grounds am I using to make these
`statements?
` Q. Yes, that's right. So I'm asking what the
`factual foundation is for the statements in this
`paragraph.
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`Fax: 314.644.1334
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`KARON MacLEAN 11/17/2015
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`Page 13
` A. Well, there's a number of different statements in
`the paragraph and so that will come from different places.
` I would say it's common knowledge or readily
`available on the web the times and products that were
`produced here. Some of them are devices that I have used
`myself or colleagues have used during this period, so it
`was simply my own knowledge and verified with checking
`release dates and records online.
` Q. Have you used the Treo 90?
` A. I did not use the Treo 90.
` Q. Have you reviewed any manuals or documentation
`related to the Treo 90?
` A. Not recently.
` Q. Are you aware that the Treo 90 is not a smart
`phone?
` A. I said in my statement that devices were marketed
`as smart phones and the Treo 90 was one of those that was
`marketed as a smart phone. I would agree that it's not a
`smart phone. As the statement says, they were marketed as
`smart phones but they combine a small number of relatively
`compatible functions, but that word was starting to be
`used for them.
` Q. Please turn with me to the next paragraph of your
`declaration, it's paragraph 35.
` A. M'mm-hmm, yes.
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`Fax: 314.644.1334
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`KARON MacLEAN 11/17/2015
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`Page 14
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` Q. And also -- well, I'm sorry, let's start with
`paragraph 35. What is the factual basis for the
`statements that you offer in paragraph 35?
` A. Well, the principal factual statement is the
`release date of the iPhone and the Android HTC, and this
`again is common knowledge. And also I did own one of
`these devices so I have personal experience with it.
` In terms of statement what these devices did and
`what they provided in terms of their functionality and the
`originality, the innovativeness of that originality, the
`Swiss Army -- the first time there was Swiss Army knife
`functionality, I think that that is also general
`knowledge. And if you lived through that period, people
`were generally aware that this was a new thing.
` Q. Did you look at any manuals or other
`documentation relating to smart phones that predated the
`2007 iPhone and/or the 2008 Android HTC Dream?
` A. Not specific manuals, no.
` Q. What do you mean by a Swiss Army knife? Swiss
`Army knife smart phone?
` A. Yeah, so by Swiss Army knife I was drawing an
`analogy to Swiss Army knife, which is tool that can do
`many different things. So it had a single device that
`competently executed a number of different functions that
`were quite different in their user interface requirements,
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`Fax: 314.644.1334
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`KARON MacLEAN 11/17/2015
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`Page 15
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`among other things.
` Q. And I believe you state in paragraph 35 that a
`smart phone -- a Swiss Army knife-type smart phone is one
`that has business, music and gaming, as well as
`telephoning and calendaring and third party apps; is that
`right?
` A. That's the statement, yes.
` Q. What is a business use?
` A. Business use would be -- well, in contrast, some
`devices marketed before that would be, for example, an MP3
`primarily which was primarily a music-playing tool and I
`would not call that business use.
` Use that would be often important for business
`would be email and calendaring and contacts and that kind
`of thing. And I don't mean to suggest that it would be
`solely for business use, but there was this adoption --
`strong adoption by business users of these devices because
`of their usefulness in that context.
` Q. Is it your opinion that there was no Swiss Army
`knife smart phone prior to the 2007 iPhone?
` A. I would not say that. I would -- the statement
`there is that it truly emerged, and I would say -- what I
`would say is that with 2007 the iPhone, this general
`purpose device really launched and became much more common
`and available and frequently used by people.
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`Fax: 314.644.1334
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`KARON MacLEAN 11/17/2015
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`Page 16
` One aspect of that was the ability that -- the
`prevalence of third party applications which really grew
`the versatility of how the device can be used. Rather
`than having this small set of applications that were
`provided by the manufacturer, there were now a lot of
`sources of applications for it and it really -- really
`spawned a lot more wider use of them.
` Q. So in your opinion there were Swiss Army knife
`devices prior to the 2007 iPhone?
` A. There was functional capability. There may have
`been some functional capability of that sort, but it
`didn't -- the pieces didn't all come together so people
`were actually using it in that way.
` In other words, there was many examples in
`technological history where the technological pieces of
`something, the enabling pieces might be present, but they
`weren't all together in the same invention and didn't
`really take off.
` And I say it didn't really take off here, and an
`important part of the phenomenon here is the third party
`apps -- these third party apps. And that is a synergistic
`thing where there had to be a lot of third party activity
`centered around a platform. And the platform had to be
`there and the third party activity had to be there, and
`the open -- the ability for these apps to run on this
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`MIDWEST LITIGATION SERVICES
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`SCEA Ex. 1040 Page 16
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`KARON MacLEAN 11/17/2015
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`Page 17
`platform had to be there. And those things all had to be
`there together for it to really to take off in this way,
`and that did not happen before 2007. So the other
`platforms did not get as much play. It didn't -- they --
`they didn't have such an impact. They didn't have such a
`wide acceptance.
` Q. By other platforms what do you mean?
` A. Well, BlackBerry is the obvious example. So the
`previous paragraph of this statement says -- in the
`declaration says BlackBerry integrated a number of
`functions in 2003. And so they had email, mobile
`telephony, text, fax and web browsing, which is -- I would
`say meets a standard of a convergent smart phone.
` It's not what I meant by Swiss Army knife
`because, although it has a number of different functions,
`it didn't have this plethora of additional things. But
`it's starting to get there and it's starting to lay the
`groundwork for it.
` So I would say between 2003 and 2007 things were
`moving into place and starting to grow.
` Q. So in your opinion the thing that was missing
`from the BlackBerry 6000 series that disqualified it as a
`Swiss Army knife-type smart phone is the availability of
`third party applications. Is that your testimony?
` A. Well, to be strictly correct, what I say is in
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`MIDWEST LITIGATION SERVICES
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`Fax: 314.644.1334
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`SCEA Ex. 1040 Page 17
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`KARON MacLEAN 11/17/2015
`
`Page 18
`2007 the Swiss Army knife smart phone truly emerged. I
`didn't say it didn't exist before that. But it became
`popular then. It became a big thing.
` I think that it was starting with the BlackBerry.
`And I would hesitate to say the BlackBerry was not a Swiss
`Army knife one, but it wasn't a big thing. It wasn't
`proliferating with abilities in that way. But it was a
`convergent device. It did have the ability to do both
`email, data services and mobile telephony.
` Another factor that I didn't discuss in the
`statement, of course, is the availability of data networks
`to support all this activity. Of course, that was
`something that had to come into place gradually, and it
`wasn't there in 2003. It was -- it took longer.
` Q. So in your statement in paragraph 35 when you say
`that it was not until -- I'm going to paraphrase that, but
`we can read the statement.
` A. Yeah.
` Q. In that statement when you mention this Swiss
`Army knife smart phone truly emerging you're talking about
`consumer acceptance. Is that fair?
` A. There is several things happening together.
`Consumer acceptance was certainly a big piece of that, but
`all these things had to happen at the same time.
` So consumer acceptance was part of the say -- so
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`MIDWEST LITIGATION SERVICES
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`Fax: 314.644.1334
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`SCEA Ex. 1040 Page 18
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`KARON MacLEAN 11/17/2015
`
`Page 19
`
`there had to be third party apps. There had to be
`networks. There had to be a platform that supported the
`third party apps and welcomed them and had the
`functionality on the platform that allowed the third party
`apps develop. And there had to be consumer support for
`it.
` So all of these things had to roll out together.
`And there's a long history in technology development of,
`you know, the first to market, the second to market, the
`third to market might get part of the equation right but
`not all of the pieces, and it kind of tries and doesn't
`quite make it.
` But the iPhone is often noted -- it's not just my
`opinion -- it's often noted as being the first one that A,
`got everything right, and B, came at the right time. So
`it benefited from these earlier not so successful
`attempts, but also part of what it benefited by was, as
`you mentioned, the consumer acceptance. The consumers
`were ready for it by then. They'd seen the successively
`more successful attempts and they were hungering for this
`device by then. And so when one finally came out that
`was -- had all the pieces together, it was -- it hit a
`very receptive audience.
` So it's not just one thing. It was a whole
`ecosystem that had been growing and developing, and then a
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
`
`SCEA Ex. 1040 Page 19
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`KARON MacLEAN 11/17/2015
`
`Page 20
`
`good product came out and the market was ready for it.
` Q. Why are third party apps necessary for there be a
`Swiss Army knife smart phone?
` A. Well, as I said, it's not necessary. I think
`that there was elements of it in the earlier device, the
`BlackBerry, for example. And there was successions of
`BlackBerry. It wasn't just one. There was increasingly
`more competent, more feature-rich models as the years went
`by between 2003 and 2007.
` I would not say that the third party applications
`were necessary for it to be a Swiss Army knife smart
`phone, but it certainly enabled it and made it much more
`so. It meant there was a much greater diversity of things
`that it could do.
` And you started to have this phrase of oh, there
`must be an app for that. If you -- if the phone couldn't
`do it right now and it seemed like its sensors and its
`capabilities could do it, you wait awhile and someone
`would write an app for it and enable it to do that
`function. There started to be that attitude around this
`time.
` Q. Do you know whether or not were third party
`applications for the BlackBerry 6000?
` A. I'm not very familiar with the BlackBerry series
`and I do not know. It wasn't a commonly talked about
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`www.midwestlitigation.com
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`SCEA Ex. 1040 Page 20
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`
`
`KARON MacLEAN 11/17/2015
`
`Page 21
`
`thing. It was not near the scale. If there was, it
`couldn't have been of the scale of the culture that
`surrounded the iPhone in essence.
` Q. Apart from third party apps, what else was
`missing in the phones and devices prior to 2007 that
`disqualified them as a Swiss Army knife-type phone?
` A. Well, as I said, I was never a BlackBerry user
`personally and so I will qualify my comments, but the
`general consensus in the field was there was usability and
`integration issues. So the BlackBerry was not -- it had
`at least one substantial usability improvement over the
`iPhone, one respect in which most people agree that it
`worked better than the iPhone. But in most respects,
`people found it less well integrated, less easy to use,
`less usability than the iPhone. So that was one thing
`that seemed to be missing in the popularization.
` Another aspect that I certainly felt personally
`and I know many of my colleagues did as well, was the
`integration with the desktop system. Is that the
`seamlessness of the connection of the stuff you had on
`your phone and the stuff you had on your -- rest of your
`computational tools worked very well for the iPhone, and
`my understanding is they did not work as seamlessly for
`the BlackBerry. And that was something that some people
`preferred and made a difference for adoption.
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
`
`SCEA Ex. 1040 Page 21
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`
`
`KARON MacLEAN 11/17/2015
`
`Page 22
`
` Q. You mentioned the Treo 90, I believe, in your
`declaration. Are you familiar with the Treo 270?
` A. No.
` Q. Did you consider the Treo 270 in forming your
`opinion?
` A. Not directly, no.
` Q. I'm going to hand you a document that we have
`marked. This is a new exhibit.
` A. Okay.
` MR. KEAN: And we have marked this Exhibit 1037.
` (Exhibit 1037 was marked for identification
` and is attached hereto.)
` MR. KEAN: And that can be in the 245 proceeding,
`please. What I think we'll do we'll just continue on the
`exhibiting numbers from Mr. Lim's deposition a couple of
`weeks ago, and then -- in the 245 proceeding, and then we
`can reference these in the 692 proceeding. I think that
`will be a clean way to handle that.
` (DISCUSSION OFF THE RECORD)
` MR. KEAN:
` Q. Dr. MacLean, will you please turn with me to
`page 11 of the Exhibit 1037 that I just handed you. And
`take a minute to just review the text on that page.
` A. Okay.
` Q. Now, based on what is described here, and this is
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`SCEA Ex. 1040 Page 22
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`KARON MacLEAN 11/17/2015
`
`Page 23
`
`a document, it's a users guide for the Treo 270 --
` A. M'mm-hmm.
` Q. -- Communicator?
` A. M'mm-hmm.
` Q. Based on what is described here, this Treo
`Communicator included telephony technology; is that right?
` A. Yes, it says it does.
` Q. And it also includes business uses such as email,
`a to-do list and a memo pad; is that right?
` A. I'm just reading it again. Yes, it lists those
`features.
` Q. And it also includes a calendaring feature
`described as the Date Book Plus; is that right?
` A. It lists the Date Book Plus, yes.
` Q. Please turn to page 42 of this document. Take
`just a minute to review.
` A. Okay. I have read it.
` Q. Please confirm that this disclosure includes
`games and business applications. For instance, it says
`you can install -- it's in the first line of the first
`paragraph -- it says you can also install additional
`applications on your Communicator such as business
`applications, games or other software. Do you see that?
` A. Yes, I see that sentence.
` Q. And would you also agree that this paragraph
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
`
`SCEA Ex. 1040 Page 23
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`KARON MacLEAN 11/17/2015
`
`Page 24
`
`describes third party applications that can be used on
`this Treo 270 Communicator?
` A. It says the third party applications can be used
`on this Communicator.
` Q. Would the Treo 270 meet your definition of a
`Swiss Army knife phone?
` A. It's very similar to the BlackBerry in that
`respect. I would apply the same comments to the
`BlackBerry to it.
` I talked about the third party applications, and
`as I said, for the BlackBerry I'm not certain about the
`degree of which third party applications were available.
`It's beyond my knowledge. I was a Palm user, not of this
`device, but of earlier Palm devices that were not what I
`would call convergent devices, and so I was certainly
`aware you could install third party applications on them.
`And games have been available for every device that was
`ever made, I think.
` So this is the kind of thing that earlier Palm
`devices also supported in terms of allowing third party
`applications.
` I do want to make the point that when I
`said -- what I said about the third party apps being so
`important for the iPhone was really a matter of degree.
`So there were certainly third party apps that you could
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`MIDWEST LITIGATION SERVICES
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
`
`SCEA Ex. 1040 Page 24
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`KARON MacLEAN 11/17/2015
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`Page 25
`install on the Palm, but there wasn't this huge culture of
`innovation and the scale of it was much more limited.
`That was similar to what I said about the BlackBerry, that
`the device existed and had abilities, but did not scale
`the same way.
` Q. Okay. I would like to get back to that in just a
`minute. I don't know if I fully understand your testimony
`on that. But first I want to ask about your experience
`with the Palm. In your experience the Palm device had
`games; is that right?
` A. Yes, it had games, some simple games installed on
`it. I think the ones that I can remember -- it's been
`awhile. There were some simple games installed on them.
` Q. And in your view, why would a device like the
`Palm include games?
` A. Because people like to play games.
` Q. I want to get back to your statement about the
`Swiss Army knife smart phones. I guess it's still unclear
`to me whether or not the Treo 270 would qualify under your
`definition.
` A. Okay. Similarly to what I said with the
`BlackBerry, I think it qualifies as -- okay. It has the
`multiple
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